Bhagwat
Dutt Rishi Vs. Ram Kumar [1989] INSC 336 (8 November 1989)
Misra
Rangnath Misra Rangnath Sawant, P.B. Ramaswamy, K.
CITATION:
1989 SCR Supl. (2) 93 1990 SCC (1) 324 JT 1989 (4) 386 1989 SCALE (2)1157
ACT:
East
Punjab Urban Rent Restriction Act, 1949: Ss. 2(hh) & 13A--Eviction--Public
Officer becoming landlord after superannuation-Whether 'specified
landlord'--Whether entitled to eviction.
HEAD NOTE:
Section
13A of the East Punjab Urban Rent Restriction Act, 1949 lays down the procedure
for a 'specified landlord' to seek immediate recovery of possession of his
residential building at any time within one year prior to or within one year
after the date of his retirement or after his retirement but within one year of
the date of commencement of the East Punjab Urban Rent Restriction (Amendment)
Act, 1985, whichever is later. Section 2(hh) of the Act defines 'specified
landlord' to mean a person who is entitled to receive rent in respect of a
building on his own account and who is holding or has held an appointment in a
public service or post in connection with the affairs of the Union or of a
State.
The
appellant, who was holding a post in connection with the affairs of the State,
had retired on September
30, 1981.
He was
member of a Mitakshara family. The house in question was tenanted out to the
respondent by his father in July 1982 and upon his father dying in the
following month the tenant attorned to the appellant. The amendment came into
force with effect from November
16, 1985. The
appellant applied for eviction on May 13, 1986. He sought benefit of the special
procedure laid down in s. 13A of the Act on the ground that all the ingredients
of the definition of 'specified landlord' were satisfied. The courts below
rejected the contention. The High Court relying on the ratio laid down by this
Court in D.N. Malhotra v. Kartar Singh, [1988] 1 SCC 656 and Mrs. Winifred Ross
v. Mrs. Ivy Fonseca, [1984] 1 SCC 288 held that the appellant could not be a
'specified landlord'.
Dismissing
the appeal by special leave,
HELD:
Until the landlord satisfies the test that he was a landlord qua the premises
and the tenant at the time of his retirement or dis94 charge from service. he
can not be a 'specified landlord' as defined in s. 2(hh) of the East Punjab
Urban Rent Restriction Act, 1949. [98F, 94F] In the instant case, the appellant
was not the landlord of the premises in question before he superannuated. He
would not, therefore, be entitled to the benefit of the special procedure laid
down in s. 13A of the Act. [99A-B] D.N. Malhotra v. Kartar Singh, [1988] 1 SCC
656 and Mrs. Winifred Ross v. Mrs. Ivy Fonseca, [1984] 1 SCC 288, applied.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 4567 of 1989.
From
the Judgment and Order dated 22.12.1988 of the Punjab & Haryana High Court
in C.R. No. 1327 of 1987.
Gopal Subramanium, N.D. Garg and Rajiv K. Garg for the Appellant.
J.K. Nayyar,
Rajeev Sharma and S.K. Bisaria for the Respondent.
The
Judgment of the Court was delivered by RANGANATH MISRA, J: Special leave granted.
The
short question for consideration in this appeal at the instance of the landlord
in a proceeding for eviction under the East Punjab Urban Rent Restriction Act
is as to whether the appellant before us is a specified landlord as defined in
s. 2(hh) of the Act. The High Court has decided against the landlord by relying
upon the decision of this Court in the case of D.N. Malhotra v. Kartar Singh,
[1988] 1 SCC 656. When this matter came before a 2-Judge Bench on 16.8.1988 the
following order was made:
"This
matter may be listed before a Bench of three Hon'ble Judges two weeks hence for
consideration of the question in the light of the decision of this Court in
D.N. Malhotra v. Kartar Singh, [1988] 1 SCC 656." Section 2(hh) of the Act
defines 'specified landlord' to mean:
95
"a person who is entitled to receive rent in respect of a building on his
own account and who is holding or has held an appointment in a public service
or post in connection with the affairs of the Union or of a State." It is
not disputed that the appellant was Reader to the Sessions Judge of Sangrur
from where he retired on 30th of September, 1981. He was thus holding a post in
connection with affairs of a State. He was member of a Mitakshara family and
the house in question was tenanted out to the respondent by his father in July,
1982, and upon his father dying in the following month the tenant attorned to
the appellant.
Section
13-A of the Act provides:
"Where
a specified landlord at any time, within one year prior to or within one year
after the date of his retirement or after his retirement but within one year of
the date of commencement of the East Punjab Urban Rent Restriction (Amendment)
Act, 1985, whichever is later, applies to the Controller along with a
certificate from the authority competent to remove him from service indicating
the date of his retirement and his affidavit to the effect that he does not own
and possess any other suitable accommodation in the local area in which he
intends to reside to recover possession of his residential building or
scheduled building, as the case may be, for his own occupation, there shall
accrue, on and from the date of such application to such specified landlord,
notwithstanding anything contained elsewhere in this Act or in any other law
for the time being in force or in any contract (whether expressed or implied),
custom or usage to the contrary, a right to recover immediately the possession
of such residential building or scheduled building or any part or parts of such
building if it is let out in part or parts: ..........." The amendment
came into force with effect from 16.11.1985. The appellant applied for eviction
on 13.5.1986.
Thus,
within one year of the enforcement of the Amending Act of 1985, the application
for eviction was filed following the procedure laid down under the Act.
Appellant's contention which has been rejected in the Courts below has been
that all the ingredients of the definition of 'specified landlord' are
satisfied and he should, therefore, have been admitted to be a 96 specified
landlord and given the benefit of the special procedure. The High Court relied
upon the following observations in Malhotra's case:
"It
has been urged before us on behalf of the respondent at the relevant time i.e.
after retirement of the respondent from service within one year of the date of
commencement of the said Act he is the landlord of the appellant and as such he
falls within the definition of section 2(hh) of the said Act and he becomes a
specified landlord. This submission, in our view, cannot be sustained inasmuch
as the words 'specified landlord' as used in section 2(hh) refer to the person
in service of the Union who is a landlord at the time of his retirement from
the public service or post in connection with the affairs of the Union or of
State. It cannot in any manner include an ex-serviceman who was not a specified
landlord qua the tenant and the premises on or before the date of his
retirement from the service of the Union.
This has been very succinctly held by this Court in the case of Mrs. Winifred
Ross v. Mrs. Ivy Fonseca, which has been referred to hereinbefore." Malhotra's
case in terms relied upon an earlier decision of this Court in Mrs. Winifred
Ross v. Mrs. Ivy Fonseca, [1984] 1 SCC 288 in support of its view.
It is
not disputed that on the ratio laid down by this Court in the two decisions
referred to above the High Court had come to the correct conclusion that on the
facts the appellant could not be a specified landlord. It is now for
consideration whether the cases of Winifred Ross and D.N. Malhotra, have been
correctly decided.
Winifred
Ross, case was considering s. 13A of the Bombay Rents, Hotel & Lodging
Houses Rates Control Act of 1947.
Section
13A had been brought into the Act in 1975. The said section provided:
"Notwithstanding
anything contained in this Act,-(a) a landlord who is a member of the armed
forces of the Union, or who was such member and is duly retired (which term
shall include premature retirement), shall be entitled to recover possession of
any premises, on the ground that the premises are bona fide required by him for
occupation by himself or any member of his family (which 97 term shall include
a parent or other relation ordinarily residing with him and dependent on him);
and the Court shall pass a decree for eviction on such ground if the landlord,
at the hearing of the suit produces a certificate signed by the Head of his
Service or his Commanding Officer to the effect that-(i) he is presently a
member of the armed forces of the Union or he was such member and is now a
retired ex-serviceman;
(ii)
....................
(b)
...................." Dealing with this provision this Court said:
"The
essential requirement is that he should have leased out the building while he
was a member of the Armed Forces. His widow can also recover the premises of
which she is or has become the landlord under clause (b) subject to fulfilment
of the conditions. Having regard to the object and purposes of the Act and in
particular Section 13-A 1, it is difficult to hold that Section 13-A 1 can be
availed of by an ex-member of the Armed Forces to recover from a tenant
possession of a building which he acquires after his retirement. Acceptance of
this argument will expose the very Section 13-A 1 of the Act to a successful
challenge on the ground of violation of Article 14 of the Constitution for it
that were so, a retired military officer who has no house of his own can
purchase any building in the occupation of a tenant after his retirement,
successfully evict a tenant living in it on the ground that he needs it for his
use, then sell it for a fancy price and again because he has no house of his
own, he can again acquire another building and deal with it in the same way.
There
appears to be n0 restriction on the number of times he can do so. It was argued
that he would not be able to get the requisite certificate under the Act more
than once. A reading of Section 13-A 1 of the Act shows that the certificate
should show that the person concerned has been a member of the Armed Forces and
that he does not possess any other suitable residence in the local area where
he or members of his family can reside.
Those
98 conditions being satisfied the certificate cannot be refused. A liberal
construction of Section 13-A1 of the Act as it is being pressed upon us, would
also enable unscrupulous landlords who cannot get rid of tenants to transfer
their premises to ex-military men, as it has been done in this case in order to
avail of the benefit of the said section with a private arrangement between
them. It is also possible that a person who has retired from the Armed Forces
may after retirement lease out a premises belonging to him in favour of a
tenant and then seek his eviction at his will under Section 13-A 1 of the Act .............."
A little later in the same decision this Court said:
"Since
a liberal interpretation of Section 13-A 1 of the Act is likely to expose it to
a successful challenge on the basis of Article 14 of the Constitution, it has
to be read down as conferring benefit only on those members of the Armed Forces
who were landlords of the premises in question while they were in service even
though they may avail of it after their retirement. Such a construction would
save it from the criticism that it is discriminatory and also would advance the
object of enacting it, namely, that members of the Armed Forces should not
while they are in service feel worried about the difficulties of a long drawn
out litigation when they wish to get back the premises which they have leased
out during their service." In Malhotra's case, this Court was called upon
to consider s. 13A of the very Act with which we are now concerned. On the
basis of the ratio in Winifred Ross' case, this Court came to the conclusion
that until the landlord satisfied the test that he was a landlord qua the
premises and the tenant at the time of his retirement or discharge from
service, he would not be entitled to the benefit of s. 13A of the Act.
It is
not disputed that the appellant retired on 30th of September, 1981. On the
finding the appellant is right in his submission that this was not a case of
transfer with an oblique motive but as the property belonged to a Mitakshara
father, upon his death the property has come to his hands.
This
feature which is different from the facts appearing in the two reported
decisions, however, would not persuade us to give a different meaning to the
definition in s. 2(hh).
In
both the cases, for good reason this Court came to the conclusion that the
public officer 99 should have been a landlord of the premises in question while
in service. Admittedly, the appellant was not the landlord before he
superannuated.
We are
of the view that the opinion of this Court in Winifred Ross' case is
unassailable and, therefore, the appellant would not be entitled to the benefit
of the special procedure in s. 13A of the Act.
The
appeal fails and is dismissed. Parties are directed to bear their own costs.
P.S.S.
Appeal dismissed.
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